NLRB DIVISION OF JUDGES BENCH BOOK

SUPPLEMENTó2005

(This is a supplement to the existing Bench Book and its September 9, 2001

page supplement, covering cases and materials through December 2005. Topics are pegged to section headings in the existing Bench Book)

SECTION 2-300óREGULATING THE COURSE OF THE TRIALóIn

University Medical Center, 335 NLRB 1318 fn. 1, 1343 (2001), enfíd in part

335 F.3d 1079 (D.C. Cir. 2003), the Board recognized that, in the proper

circumstances, it is appropriate for the judge to place time limits on the

presentation of a partyís case. Here, the judge imposed a time limit on the

presentation of the Respondentís case in chief after concluding its case was

taking too much time in proportion to the valid issues presented and there

was no reasonable alternative except to impose such a limit. SECTION 2-510óALJ DISQUALIFICATIONóGROUNDS ASSERTED

FOR DISQUALIFICATIONóIn Waterbury Hotel Management, LLC v. NLRB, 314 F.3d 645, 650-651 (D.C. Cir. 2003), the Court rejected a

respondentís contention that the judge deprived it of a fair hearing because

of bias. The Court noted that a judge may not be disqualified simply

because he presided over the remand of a case in which he previously ruled

against the same employer; thus, in the instant case, it was not error for a

judge not to recuse himself simply because he had ruled against the

respondentís predecessor in an unrelated case. The Court also reaffirmed

that adverse findings alone do not support a finding of bias. Finally, the

Court held that it is not per se disqualifying for a judge to adopt one sideís

post-hearing brief ìmore or less verbatim,î although this practice is frowned

upon; in the instant case, the Board independently reviewed the entire record

before affirming the judge. For a similar view on the adoption of briefs, see

Fairfield Tower Condominium Assín., 343 NLRB No. 101 fn. 1 (2004). But see Dish Network Service Corp., 345 NLRB No. 83 (2005), where

the Board found that the judge, who had previously been warned against this

practice in Fairfield Tower, copied so extensively from the briefs of the

General Counsel and the Charging Party that it created the appearance that

the judgeís decision was not impartial. According to the Board, the judgeís

extensive and verbatim copying gave the impression that the judge ìfailed to

conduct an independent analysis of the caseís underlying facts and legal
2

issues.î The Board therefore set aside the judgeís decision and remanded

the case to a new administrative law judge for an independent review of the

record and the preparation of a new decision. The Board took the same

approach in J.J. Cassone Bakery, Inc., 345 NLRB No. 111 (2005), another

case involving the same judge. See also SECTION 12-401(new section), infra. ALJ DISQUALIFICATIONóGROUNDS ASSERTED FOR

DISQUALIFICATIONóJUDGE SHOULD AVOID INTEMPERATE

COMMENTS TO GUARD AGAINST EVEN THE APPEARANCE OF

BIASóIn Victorís CafÈ 52, Inc., 338 NLRB 753, 756-757 (2002), the Board

cautioned a judge against making intemperate comments about a witness and

counsel for the General Counsel to avoid giving even the appearance of bias. In that case, the Board affirmed the judgeís credibility determinations, but

expressed its concern that such comments might compromise the integrity of

the Boardís decision-making processes. See also St. Maryís Acquisition Co., 342 NLRB No. 100 (2004), where the Board, in response to a motion by the General Counsel to

disqualify the judge, and by a 2-1 margin, cited a judgeís erroneous ruling, adhered to after an initial remand, and allegations that the judge showed

ìirritationî and ìimpatience,î in support of a second remand, this time to

another judge. The Board did this in order to remove any suggestion of bias

or prejudice, without specifically passing on the motion itself. See fn. 6 at

slip op. 2. SECTION 3-220óAMENDMENTS TO COMPLAINTSóWHEN

AMENDMENTS ARE ALLOWEDóCLEARLY RELATED

DOCTRINEóSECTION 10(b)óIn Precision Concrete, 337 NLRB 211

(2001), enforcement denied in pertinent part, 334 F.3d 88 (D.C. Cir. 2003), the Board reaffirmed and applied its Redd-I rule (290 NLRB 1115, 1118

(1988)) to find that an amended complaint allegation was closely related to

an existing complaint allegation and therefore was not time-barred under

Section 10(b) of the Act. The Board found that the otherwise untimely

allegation involved the same legal theory as the timely allegation, it arose

from the same factual situation or sequence of events and the respondent

basically would raise similar defenses to both allegations. See also Kentucky

Tennessee Clay Co., 343 NLRB No. 102, slip op. 2 (2004).
3

SECTION 3-340óAMENDMENTS TO COMPLAINTSóDE FACTO

AMENDMENTSóUNPLEADED BUT FULLY LITIGATEDóIn Desert

Aggregates, 340 NLRB No. 38, slip op. at 4-5 (2003), modified on

reconsideration, 340 NLRB 1389 (2003), the Board, citing relevant

authority, set forth the following general principles: The Board ìmay find a

violation not alleged in the complaint, even where the General Counsel has

not filed a motion to amend, if the issue is closely related to the subject

matter of the complaint and has been fully and fairly litigated.î According

to the Board, the fully litigated requirement is met if the respondentís

witness testified to the facts giving rise to the unalleged violation, no party

objects, and the respondent has had an opportunity to further explore the

issue. However, the Board also considers whether the absence of a specific

allegation precluded a respondent from presenting exculpatory evidence or

whether respondent would have altered its conduct of the case at the hearing, had a specific allegation been made. Thus, an unalleged violation is not

necessarily fully litigated simply because the facts giving rise to it emerge

incidentally during the hearing. In Desert Aggregates, the Board denied the

General Counselís motion to amend made in a post-hearing brief because, in

its view, the evidence about captive audience meetings, which contained a

statement allegedly constituting a violation not contained in the complaint, emerged incidentally, the respondent did not have notice that the statement

was at issue, and, thus, the failure to specifically allege a violation may have

hindered respondentís defense. Accordingly, the Board found that the

matter was not fully litigated.

In Champion International Corp., 339 NLRB 672 (2003), the Board, in a 2-1 decision, declined to find that an unpleaded allegation of direct

dealing had been fully and fairly litigated, although the complaint alleged, and the Board found, unilateral action in violation of the Act. The Board

held that the facts supporting that violation would not support a separate

finding of direct dealing, absent a specific complaint allegation or

amendment to that effect. There was no full and fair litigation of the direct

dealing theory, according to the majority, because the respondent was not

made aware that the facts relevant to the unilateral change allegation were

intended to prove a separate direct dealing allegation. The Board stated, ìIt

is axiomatic that a respondent cannot fully and fairly litigate a matter unless

it knows what the accusation is.î 339 NLRB at 673. See also Lamar

Advertising of Hartford, 343 NLRB No. 40, slip op. 5-6 (2004).
4

Compare Airbourne Freight Corp., 343 NLRB No. 72 (2004), where

the Board approved a judgeís finding that a Section 8(a)(4) violation, which

was not specifically alleged in the complaint, was fully litigated. The

complaint alleged, and the judge found, based on an admission by a

supervisor, that the respondent violated Section 8(a)(1) of the Act by telling

an employee that he would not be transferred because he had filed charges;

the complaint alleged, and the judge also found, that respondent in fact

prevented the transfer for anti-union discriminatory reasons in violation of

Section 8(a)(3) of the Act. The Board found that the supervisorís statement

demonstrated that in preventing the transfer respondent was motivated not

only by union considerations but also by the fact that the employee filed

charges. According to the Board, although the judgeís discussion of the

Section 8(a)(4) violation focused on the supervisorís statement, it clearly

covered the respondentís discriminatory actions, and the parties litigated the

facts material to that issue ìthoroughly and without objection in connection

with the Section 8(a)(3) violation.î Thus, the Board found that the judge

ìdid not exceed his discretion in finding a violation of Section 8(a)(4), as to

the statement, even absent a specific complaint allegation,î citing Pergament

United Sales, Inc., 296 NLRB 333, 334-335 (1989), enfd. 920 F.2d 130 (2

nd

Cir. 1990). See also Atlantic Veal & Lamb, Inc., 342 NLRB No. 37 at fn. 5

(2004), enfíd mem. 2005 WL 3309307 (D.C. Cir. October 27, 2005).

In U.S. Postal Service, 345 NLRB No. 100 (2005), the Board upheld a

finding that the Postal Service and its union violated the Act by enforcing a

contract provision against two employees that limited training instructor

positions to union members. But the Board refused to remedy that violation

by affirmatively and broadly ordering reinstatement for unidentified but

similarly situated employees who were also denied those positions. The

Board noted that the complaint alleged a violation only with respect to the

two named employees and a broader violation was neither alleged nor fully

and fairly litigated. It was not sufficient that a provision of the complaint

sought the broader remedy for additional employees because, as the Board

stated, that provision ìdid not address the threshold issue of what unfair

labor practices the complaint alleged.î SECTION 3-500óANSWER TO COMPLAINTóADMISSIONS IN

ANSWERóWAIVER OF AFFIRMATIVE AND OTHER DEFENSESóIn

C.P. Associates, Inc., 336 NLRB 167 (2001), the Board reaffirmed that ìan

admission is in effect a confessory pleading and it is conclusive upon the

party making it.î Thus, the judge and the Board were entitled to rely on the
5

respondentís admission in its answers that it terminated an employee ìon or

aboutî a certain date. As the Board stated, ìadmissions contained in

pleadings are binding even where the admitting party later produces contrary

evidence.î See also Harco Trucking, LLC, 344 NLRB No. 56 (2005), collecting cases. In Harco, respondent raised a corporate non-existence

defense for the first time in its post-hearing brief to the judge, but had

admitted its existence in its answer. Respondent did not seek to amend its

answer at the hearing and it first raised the defense in its post-hearing brief

to the judge. The Board found that to be untimely and ruled that the defense

was waived in the circumstances. Accord: Dayton Newspapers, Inc., 339

NLRB 650, 653 fn. 8 (2003), enfd 402 F.3d 651 (6

th Cir. 2005) (Section

10(b) defense, an affirmative defense raised for the first time in a post- hearing brief to the judge, is waived). See also, infra, SECTION 13-245. SECTION 3-650óREVIVAL OF WITHDRAWN OR DISMISSED

CHARGEóDUCANE HEATING RULE PREVENTING

REINSTATEMENT OF DISMISSED CHARGES AFTER PASSAGE OF 6

MONTHSóThe rule in Ducane Heating, 273 NLRB 1389 (1985), enf. mem. 785 F.2d 304 (4

th Cir. 1986), prevents the General Counsel from

reinstating dismissed charges once 6 months have passed even if the charges

were timely filed. See Machinists v. NLRB, 130 F.3d 1083 (D.C. Cir. 1997). But the situation is different if an appeal of the dismissal remains pending

before the General Counsel when the charge is reinstated. In that case, the

General Counsel may reinstate the dismissed charge because ìthere is no

basis for concluding that ëdeadí allegations were being revived.î Sioux City

Foundry, 323 NLRB 1071 (1997). SECTION 3-720óOTHER AFFIRMATIVE DEFENSESóLACHESóIn

an unpublished order (Gruma Corp., Cases 28-CA-17946 et al., March 15, 2005), the Board denied that part of a respondentís motion for summary

judgment asserting that a complaint allegation should be dismissed because

of laches. The Board stated that ìlaches may not defeat the action of a

governmental agency in enforcing a public right,î citing Harding Glass

Company, Inc., 337 NLRB 1116, 1118 (2002), enfíd in part 80 F.3d 7 (1

st

Cir. 1996). But it also recognized that laches could ìapply against the Board

for inordinate delay in bringing an action,î provided that a party showed it

was prejudiced by the delay, citing Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d 747, 765 (6

th Cir. 2003) and other authorities. In Gruma, the Board found that the respondent had not made such a showing in the

absence of a resolution of factual issues. In another unpublished order (The
6

Hardaway Company, 12-CA-19952, July 31, 2003), the Board found

ìgenuine issues of material fact with respect to the reasonableness of the

General Counselís delay in issuing a complaint . . . and whether [the

respondent] was unduly prejudiced by the delay.î The Board thus ordered a

hearing on only that issue, recognizing that such a bifurcated hearing was

contrary to the Boardís usual practice set forth in F.M. Transport, Inc., 302

NLRB 241 (1991). The Board did so in Hardaway because of the particular

circumstances involved, including the assertion that witnesses were deceased

or unavailable, that respondent was no longer in business and that the

hearing on the merits, which could be somewhat lengthy, was not scheduled

to begin for several months. SECTION 3-750óOTHER AFFIRMATIVE DEFENSESó

RELITIGATION OF ISSUESóCOLLATERAL ESTOPPELóBOARDíS

FINDINGS IN EARLIER CASE CAN BE USED AS FINDINGS IN

SUBSEQUENT CASEóIn Great Lakes Chemical Corp., 300 NLRB 1024, 1025 and fns. 3 and 4 (1990), enfíd 967 F.2d 624 (D.C. Cir. 1992), the

Board granted summary judgment on General Counselís motion, holding

that the Boardís findings in an earlier case could be used as a basis for

findings in a subsequent case involving the same parties. The respondent

was collaterally estopped from relitigating the facts in the earlier case. See

also, infra, SECTION 9-850 (new section). SECTION 4-500óSERVICE OF DOCUMENTSóDETERMINING

DATE OF SERVICEóFAXóIn Hardesty Company, 336 NLRB 258, 259

(2001), enfíd 308 F.3d 859 (8

th Cir. 2002), the Board found that the judge

properly inferred that the union had served the employer with an information

request by fax. The unionís fax confirmation report, which was introduced

in evidence, was sufficient to create a presumption that the employerís

lawyer received the fax. The lawyerís non-testimonial denial at trial was not

sufficient to rebut the presumption. See also, infra, SECTION 13-236 (new

section). SECTION 6-302óREQUESTS FOR CONTINUANCE TO OBTAIN

COUNSELóWHEN COUNSEL OR PARTY LEAVES TRIAL AFTER

REQUEST IS DENIEDóIn Ethan Enterprises, Inc., 342 NLRB No. 15 at

fn. 2 (2004), enfíd mem. 2005 WL 3037451 (9

th Cir., November 14, 2005), the Board approved the judgeís decision to proceed with a hearing after

respondentís attorney abruptly left in the middle of the hearing after an
7

adverse ruling. The attorney agreed to explain to his client that the hearing

was going to proceed in his absence. See also, infra, SECTION 7-220. SECTION 7-220óFAILURE OF PARTY TO APPEAR AT TRIALó

ABSENCE OF RESPONDENTíS ATTORNEYóSee discussion at

SECTION 6-302, supra, and SECTION 11-350 (new section), infra. SECTION 7-300óRIGHTS OF CHARGING PARTIES AND

DISCRIMINATEESóONLY GENERAL COUNSEL CONTROLS

THEORY OF THE CASE AND CAN MOVE TO AMEND

COMPLAINTóIn Local 282 Teamsters, 335 NLRB 1253, 1254 (2001) the

Board reaffirmed the principle that the General Counsel, not the Charging

Party, determines the theory of the case. Citing GPS Terminal Services, 333

NLRB 968 (2001), the Board stated that a judge has no authority to amend a

complaint in a manner that was neither sought nor consented to by the

General Counsel, even where the record evidence would support the

additional allegations. SECTION 7-500óMISCONDUCT BY ATTORNEY, REPRESENTATIVE OR PERSONóIn two recent cases, the Board has

stated that judges, who observe or document what they think is actionable

misconduct by an attorney or other person, should file, directly and

separately, any recommendation for discipline with the Boardís investigating

officer, under Section 102.177(e) of the Boardís Rules and Regulations. In

those cases, the judges had recommended, in their decisions, that the Board

refer the matter to the investigating officer and the Board did so, without

passing on the recommendation. See 675 West End Owners Corp., 345

NLRB No. 27, slip op. 2-3 (2005); and McAllister Towing &

Transportation, 341 NLRB No. 48, slip op. 5 at fn. 7 (2004), enfíd mem. 2005 WL 3263835 (2

nd Cir. November 30, 2005). See also Smithfield

Packing Co., 344 NLRB No. 1, slip op. 14 at fn. 59 (2004) (In referring the

matter, Board agreed with judgeís recommendation).

In 675 West End Owners, the Board also pointed out that the judge

has the authority, under Section 102.177(b), to admonish any person for

misconduct during a hearing. In that same case, the Board approved the

judgeís imposition of litigation costs on the offending party for misconduct

(violation of the judgeís instructions regarding subpoenas) that may have led

to additional costs for the charging party and the General Counsel. 345
8

NLRB No. 27 at slip op. 3 and fn. 11. See also discussion of 675 West End

Owners in SECTION 8-631(new section), infra. SECTION 8-110 (new section)óSUBPOENASóIn Electrical Energy

Services, 288 NLRB 925, 931 (1988), the Board held that a charging party

union cannot obtain by subpoena information it alleges the employer

unlawfully withheld and is also the subject of the unfair labor practice

complaint. SECTION 8-210óGROUNDS FOR REVOKING SUBPOENASóIn

Brinkís Inc., 281 NLRB 468 (1986), the Board set forth some general

principles with respect to the grounds for revoking subpoenas and the

interrelationship between the Boardís rules on subpoenas and the Federal

Rules of Civil Procedure. For example, in determining whether a subpoena

should be revoked under the ìany other reason sufficient in lawî language of

Rule 102.31(b) of the Boardís Rules, the Board suggested that it would look

to the Federal Rules of Civil Procedure for ìuseful guidance,î even though

the FRCP are not binding on the Agency. A subpoena is not ìunduly burdensomeî simply because it requests a

large number of documents. McAllister Towing & Transportation Co., supra, 341 NLRB No. 48, slip op. 4 (2004). SECTION 8-330óSUBPOENASóPROTECTING INTEGRITY OF

MATERIALóPROTECTIVE ORDERSóIt is clear that Board

administrative law judges have the authority to issue protective orders in

appropriate circumstances. Local 917, Teamsters (Peerless Importers), 345

NLRB No. 76 at fn. 7 (2005)

A party seeking a protective order in connection with subpoenaed

documents that might arguably involve confidential material bears the

burden of establishing good cause for such an order within the meaning of

Rule 26(c) of the Federal Rules of Civil Procedure. Under Rule 26(c)(7), a

protective order may be issued to preclude revelation of a trade secret or

other confidential research or development information, or to provide that ìcommercial information not be revealed or be revealed in a designated

way.î If it is determined that such an order is appropriate, the judge may ask

the party seeking the order to submit a proposed protective order. The judge

can then tailor the order to meet the legitimate needs of the moving party

and the possible objections of other parties. Protective orders generally limit
9

the persons who are to have access to the information and the use to which

these persons may put the information. FRCP 26(c)(8) also provides that the

protected documents may be placed in ìsealed envelopes to be opened as

directed by the court.î The following are examples of protective orders issued in Board

cases:

(1) AT&T Corp., 337 NLRB 689, 693, fn 1 (2002): ìThe exhibits in

this proceeding are covered by a protective order issued by me, and no

exhibits are to be furnished to outside sources pursuant to the Freedom of

Information Act or pursuant to other requests.î

(2) National Football League, 309 NLRB 78, 88 (1992): ìIt is ordered

that the protective order entered into during the hearing prohibiting the

parties from disclosing the contents of certain testimony be continued in full

force and effect and that all exhibits introduced into evidence under seal will

continue to be maintained under seal and that portions of the transcript of the

hearing held during in camera sessions will not be open to the public.î

(3) United Parcel Service, 304 NLRB 693, 693-694 (1991): The

judge ruled that certain subpoenaed documents should be produced, over

respondentís objection, but directed that ìtheir use shall be limited to this

hearing and shall neither be disclosed nor disseminated to other than counsel

of record at this hearing.î Two of the documents were later admitted into

evidence. The issue in the case was whether the protective order was

violated by use of the documents in another proceeding. The Board held

that, because the judge did not order that the documents received in evidence

be sealed and the respondentís attorney did not request a seal, their use, in

another case, after the close of the hearing, by the charging partyís attorney, was not improper. The Board noted that the judge ìfailed . . . to continue

adequately the protection afforded by his extant order.î The United Parcel case, discussed above, also notes that the violation

of a protective order may be enforced by processing a charge of misconduct

under Section 102.177 of the Boardís rules and regulations. As United Parcel further illustrates, protective orders may also be

used to restrict the use of documents that have been admitted into evidence. See SECTION 13-237 (new section), infra. SECTION 8-400óPRIVILEGED MATERIALóInsofar as a party

contends that material within the scope of the subpoena is privileged, the
10

material should be submitted to the judge for an in camera inspection before

a ruling on a petition to revoke is made. Brinkís, Inc, supra, 281 NLRB 468, 470 (1986). If the party refuses to submit the material for in camera

inspection, an adverse inference may be drawn. University Medical Center, supra, 335 NLRB 1318, 1335 (2001). SECTION 8-410óSUBPOENASóATTORNEY-CLIENT PRIVILEGEó

The privilege applies only to communications and not to facts. A witness

may not refuse to disclose facts within his own knowledge simply because

he incorporated those facts into a communication with his attorney. Sunland

Construction Co., 311 NLRB 685, 699-700 (1993), quoting from Upjohn

Co. v. U.S., 449 U.S. 383, 396-397 (1981). The privilege may, of course, be

waived, either deliberately or by inadvertence or failing to safeguard the

material. Thus, in Farm Fresh, Inc., 301 NLRB 907, 917 (1991), the Board

held that the privilege did not apply when a document, arguably subject to

the privilege, was stolen and given to the union. The respondent was

required to safeguard the document. For an in-depth analysis of attorney- client and work product issues, see Epstein, The Attorney-Client Privilege

and the Work-Product Doctrine, Fourth Edition, ABA Section of Litigation

(2001). See also, infra, SECTION 8-450 (new section).

In an unpublished order (Tri-Tech Services, 15-CA-16707 (July 17, 2003)), the Board set forth the following general principles and procedures

for presenting and deciding attorney-client privilege issues: ìA party

asserting the attorney-client privilege bears the burden of demonstrating the

essential elements of the privilegeóthat there was a communication

between client and counsel, that the communication was intended to be and

was in fact kept confidential, and that the communication was made for the

purpose of obtaining or providing legal advice. See U.S. v. Construction

Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996), cert. denied 519

U.S. 927 (1996).î The Board also set forth the requirement that the party

asserting the privilege must provide an index, identifying the allegedly

privileged documents and the parties to each of the communications and

providing sufficient detail to permit an informed decision as to whether the

document was at least potentially privileged, citing Construction Products, supra, and Fed. R. Civ. P. 45(d)(2). Specifically, the index must include ì(1)

a description of the document, including its subject matter and the purpose

for which it was created; (2) the date the document was created; (3) the

name and job title of the author of the document; and (4) if applicable, the

name and job title of the recipient(s) of the document.î The judge may, if
11

necessary, review the documents in camera to decide whether the documents

fall within the privilege.

In BP Exploration, Inc., 337 NLRB 887 (2002), the Board found that

a respondent need not provide a union with information to which it was

otherwise entitled because that information was protected by the attorney- client privilege. The union sought certain health and safety reports that were

prepared at the behest of respondentís attorney and in contemplation of

litigation. Respondent offered a summary of the reports and also offered to

discuss alternative ways to provide the information requested by the union. Since the union insisted on the reports themselves rather than the factual

information in the reports, the Board found that there was no obligation to

provide the reports or to bargain over an accommodation. The Board cited

Upjohn Co. v. U.S., 449 U.S. 383, 395-396 (1982), in explaining the

distinction between the disclosure of attorney-client communications and

disclosure of facts contained in the communication; and In re Grand Jury

Subpoenas, 123 F.3d 695 (1

st Cir. 1997), in explaining that the privilege

applies if the information relates to facts communicated for the purpose of

securing a legal opinion, legal services or assistance in a legal proceeding

(337 NLRB at 889 fns. 5 and 6). CRIME/FRAUD EXCEPTION TO ATTORNEY-CLIENT

PRIVILEGEóIn Smithfield Packing Co., supra, 344 NLRB No. 1 (2004), the Board discussed several aspects of the attorney-client privilege. It

discussed the policy considerations supporting the general rule that

confidential communications between an attorney and his or her client are

privileged. But the Board noted that ì[w]hen the advice pertains to future

wrongdoing . . . the policy considerations do not apply,î thus providing the

underpinning for the well established crime/fraud exception to [the]

attorney-client privilege in federal law, although, as the Board also noted, this exception does not encompass violations of the Act. Id., slip op. 13. The Board approved the judgeís action allowing testimony concerning an

alleged attorney-client communication as an offer of proof, but did not

address the issue directly because the judge did not use any of that testimony

in his decision. Ibid. The Board also affirmed the judge on another

attorney-client issue. The judge permitted testimony concerning

conversations between a witness for the General Counsel and the

respondentís attorney in the following circumstances. After the witnessís

direct testimony, counsel for the respondent attempted to impeach the

witness by asking her questions about affidavits the witness had given to
12

respondentís attorney. After testimony was elicited suggesting that the

affidavits were false, the judge determined that the attorney-client privilege

did not apply because the respondent had raised the issue of perjury and the

testimony raised the issue of possible subornation of perjury and knowing

introduction of false statements of material fact. The judge properly

concluded that the affidavits and the communications surrounding the taking

of the affidavits were within the crime/fraud exception because the credited

testimony of the witness ìpertained to the alleged preparation of false

affidavits and therefore involved future commission of one or more of the

crimes identified by the judge.î Id., slip op. 14. SECTION 8-440 (clarification)óSUBPOENAS AND STATE

CONFIDENTIALITY RULESóThe Boardís ruling, approved in Canova v. NLRB, 708 F.2d 1498, 1501 (9

th Cir. 1983) and set forth in the existing

section of the Bench Book, is of questionable validity. In Yuker

Construction Co., 335 NLRB 1072 (2001), the Board left undisturbed a

ruling by the judge that material subpoenaed by the General Counsel from

the Michigan Unemployment Board, which were protected from disclosure

by state law, were not privileged and were required to be produced. After

discussing applicable more recent authorities, the judge concluded that ìthe

better rule is that, where state privilege law conflicts with the enforcement of

a federal statute and the privilege is not otherwise consonant with federal

evidentiary law, state privilege law is not controlling.î Id. at 1082. Accord:

ALJ decision in D.C. Scaf old, Inc., Case No. 1-CA-41294 et al., JD-48-04, slip op. 16-17 (May 19, 2004), adopted by the Board in the absence of

exceptions by order dated July 21, 2004; and see Trinidad Logistics Co., Case No. 7-CA-44621 et al., ALJ order dated June 4, 2002, 2002 WL

1466281 (California confidentiality provision precluding the production of

evidence of criminal convictions does not outweigh need of respondent to

obtain such evidence through the subpoena process in order to use in

impeaching an alleged discriminatee testifying in a Board proceeding). SECTION 8-450 (new section)óSUBPOENASóWORK PRODUCT

DOCTRINEóPOSITION STATEMENT OF CHARGING PARTY---In

Kaiser Aluminum & Chemical Corp., 339 NLRB 829 (2003), the Board

reversed a judge who had denied a charging partyís petition to quash a

subpoena duces tecum served on it by a respondent asking for the production

of the charging partyís position statements submitted to the General

Counsel. The Board held that the work product doctrine, as reflected in Rule

26(b)(3) of the Federal Rules of Civil Procedure, applies to unfair labor
13

practice cases. Thus, the Board found that the position statements submitted

by the charging partyís attorney during the General Counselís investigation

amounted to attorney work product within the meaning of the Rule. The

Board also found that the charging party did not waive the work product

privilege by submitting the position statements to the General Counsel and

that the respondent had not shown a ìsubstantial needî for the position

statements within the meaning of Rule 26(b)(3). See also, infra, SECTION

13-215, 13-243 and SECTION 13-275. SECTION 8-500óJENCKS STATEMENTSóIn National Specialties

Installations, Inc., 344 NLRB No. 2 (2005), the Board held that a written

notice from a third party to a witness, such as a notice from the witnessís

bank, is not a ìstatement made by said witnessî within the meaning of

Section 102.118(d), and, since the notice was not adopted by the witness, by

withholding the document, the General Counsel did not violate the Jencks

rule. The Board went on to rule that, while, as a general matter, the General

Counselís failure to produce the bank notice might have given rise to an

adverse inference, the adverse inference rule is not mandatory. The Board

found that, in the circumstances, the judge properly declined to make an

adverse inference because the record evidence as a whole supported the

judgeís findings of a violation, notwithstanding the General Counselís

failure to produce the notice in question.

In NLRB v. Doral Building Services, 666 F.2d 432, 435 (9

th Cir. 1982), the Ninth Circuit found reversible error in the General Counselís

failure to provide official translation of non-English language affidavits of

its witnesses. The court found that it was not adequate to simply provide the

original affidavits to the respondent after the witnesses testified and leave it

up to the respondent to provide its own interpreter to translate the affidavits. Thus, the court refused to enforce the Boardís order and remanded the case

so that the respondent (and the administrative law judge) would be provided

with an official English translation of the original Spanish statements. See

also SECTION 13-608 (new section), infra. SECTION 8-620óSUBPOENASóFAILURE TO PRODUCE

DOCUMENTSóBANNON MILLS SANCTIONS FOR FAILING TO

TIMELY COMPLY WITH SUBPOENAóIn McAllister Towing &

Transportation, supra, 341 NLRB No. 48 (2004), the Board, by a 2-1

majority, upheld a judgeís imposition of limited Bannon Mills sanctions for

the failure of a party to comply with a valid subpoena. The General
14

Counsel was permitted to use secondary evidence to prove matters as to

which there was non-compliance and the respondent was not permitted to

rebut that evidence; but the judge denied the General Counselís request to

limit cross-examination and to automatically draw adverse inferences on the

relevant issues, explaining that she would do so only if appropriate. The

facts, which showed a pattern of delay, lack of diligence and untimely

compliance, were as follows: Although the subpoena was served some 2

weeks prior to the hearing and a motion to revoke was timely filed, the

respondent did not supply even plainly relevant documents prior to the

judgeís conference call held the day before the hearing. In the conference

call, the judge instructed counsel for respondent to ìsubstantially complyî with the subpoena the morning of the trial, rejecting counselís argument that

there was no obligation to comply until the motion to revoke had been ruled

on. At trial, the judge granted the motion to revoke only in part, but

respondent complied only in a limited fashion with that portion of the

subpoena that was not revoked. The General Counsel moved for sanctions

for non-compliance, and, after further oral argument and deliberation, the

judge granted the General Counselís motion, citing the respondentís very

limited compliance at trial and noting that respondent was wrong in asserting

that it had no obligation to comply with the valid portion of the subpoena

from the date of issuance until such time as the judge ruled on its motion to

revoke. After the judgeís ruling on the Bannon Mills sanctions, respondentís

counsel for the first time indicated that some additional documents could be

produced. The judge refused to alter her ruling, observing that respondent

had resisted complying for 12 days, but saw fit to comply within an hour of

her ruling on sanctions. The Board affirmed the judgeís ruling, stating that it was appropriate

to impose sanctions for subpoena noncompliance, including permitting the

party seeking production to use secondary evidence, precluding the non- complying party from rebutting that evidence or cross-examining witnesses

about it, and drawing adverse inferences against the non-complying party. The Boardís authority to impose such sanctions flows from its inherent

authority to maintain the integrity of the hearing process, and the exercise of

this authority is committed in the first instance to the judgeís discretion. The

Board found that the judge did not abuse her discretion in this case. The

Board noted that respondent did not comply with the subpoenas upon

receiving them, even with respect to items that were clearly relevant and

available, and that it did not begin to comply until after the judge disposed of

its motion to revoke, and, even then, it sought additional time for
15

consultations, despite the judgeís instruction to comply immediately. The

Board specifically approved the judgeís observation that ì[a] subpoena is

not an invitation to comply at a mutually convenient time.î Slip op. at 4. Rejecting respondentís arguments that the subpoena asked for quite a few

documents and that it made a belated attempt to comply, the Board noted

that respondent had an obligation ìto begin a good faith effort to gather

responsive documentsî upon service of the subpoenas. Ibid. The Board also

observed that respondentís noncompliance was likely to prejudice the

General Counselís case and the overall proceeding, noting that the General

Counsel had started his case-in-chief and respondent was just beginning its

process of compliance. Moreover, there was difficulty in getting

subpoenaed witnesses to attend the hearing. Thus, the failure to timely

produce subpoenaed documents meant that the General Counsel would have

had to recall witnesses, which would have further disrupted and prolonged

the hearing.

In Teamsters Local 917 (Peerless Importers), supra, 345 NLRB No. 76 (2005), the Board reversed a judge who had dismissed the General

Counselís complaint because the charging party failed fully to comply with

the respondentís subpoena, finding that the judge had abused his discretion

in so doing. The Board, citing McAllister Towing, supra, noted that there

were other less drastic sanctions available to the judge, and observed that

dismissing a complaint because of subpoena noncompliance would have

been unprecedented. See also, infra, SECTION 13-235. SECTION 8-631 (new section)óIMPROPER USE OF SUBPOENAS;

VIOLATION OF JUDGEíS INSTRUCTIONSóIn 675 West End Owners

Corp., supra, 345 NLRB No. 27, slip op at 3 and fn. 11 (2005), the Board

approved the imposition of litigation costs against an individual respondent

who disobeyed the judgeís instructions that a revoked subpoena may not be

served again and that issuance of a subpoena after the close of the hearing is ìan abuse of Board process.î The Board agreed with the judgeís

recommendation that a hearing be held to determine the litigation costs

expended by the charging party and the General Counsel because of the

misconduct of the individual respondent, citing applicable authorities under

the ìbad faithî exception to the American Rule against awarding litigation

costs. See also discussion of 675 West End Owners in SECTION 7-500, supra, and discussion of McAllister Towing in SECTION 8-620, supra
16

(Bannon Mills sanctions imposed because of delay in complying with

subpoena in violation of judgeís instructions). SECTION 9-500óSETTLEMENTSóREJECTION OFóIn Alamo Rent- A-Car, Inc., 338 NLRB 275 (2002) the Board affirmed the judgeís rejection

of a proposed settlement agreement, applying the general principles of

Independent Stave, 287 NLRB 740 (1987). The Board noted that the

General Counsel objected to the settlement, only one of the four individual

discriminatees approved of it, and the settlement failed to remedy any of the

Section 8(a)(1) allegations in the complaint and only partially remedied two

of the Section 8(a)(3) and (1) allegations. SECTION 9-550 (new section)óSETTLEMENTSóCOMPLIANCEó

SUMMARY JUDGMENT TO ENFORCEóIn Great Northwest Builders, 344 NLRB No. 120 (2005), the Board granted the General Counselís motion

for summary judgment to enforce the terms of a settlement agreement. The

agreement, by its terms, provided that, in case of non-compliance, the

respondentís answer to the original complaint would be withdrawn and the

General Counsel could obtain an order to remedy the allegations in the

complaint by virtue of a motion for summary judgment. See also John

Pomaville Plumbing, 344 NLRB No. 138 (2005). SECTION 9-640óSETTLEMENTSóRELEASESóWAIVER AND

RELEASE PROVISIONS IN SETTLEMENT AGREEMENTSóIn Clark

Distribution Systems, Inc., 336 NLRB 747 (2001), the Board found that

broad waiver and release provisions limiting Board investigations and

prosecution of unfair labor practices were invalid. In Clark, the Board found

that the clause in question prohibited the signatory employees from

voluntarily providing evidence to the Board in its investigation of charges

that concern other employees, distinguishing cases in which waiver and

release agreements were limited to the claims of the employees who entered

into them. The Board also found that, by conditioning acceptance of the

settlement agreement on a requirement that employees not participate in the

Boardís investigatory process, respondent violated Section 8(a)(1) of the

Act. SECTION 9-800óSETTING ASIDE SETTLEMENT AGREEMENTSó

In Nations Rent, Inc., 339 NLRB 830, 831 (2003), the Board reaffirmed that

a settlement agreement may be set aside and unfair labor practices found, based on pre-settlement conduct, if there has been a failure to comply with
17

the provisions of the settlement agreement or if post-settlement unfair labor

practices are committed, citing authorities. In Nations Rent, there was no

allegation of post-settlement unfair labor practices, but the Board, in a 2-1

decision, found that the respondent violated the settlement agreement by

failing to rescind an allegedly broad no-solicitation/no distribution rule and

by failing to notify an employee in writing that any references to his

unlawful discipline and discharge had been removed from respondentís files

and that they would not be used against him.

In American Postal Workers Local 735, 340 NLRB 1363 (2003), the

General Counsel revoked a settlement and issued a new complaint, alleging

that the respondent union had breached the earlier settlement agreement and

committed a new violation. The union had complied with the terms of the

original settlement, including the posting of a notice, to remedy an allegation

that the union violated the Act by discriminating against the charging party, a nonmember. But, at the same time, the unionís president wrote an article

addressed to all members calling the charging party a ìscabî and a

ìfreeloader,î and asserting that he was ìproudî of the actions of the steward

whose conduct had led to the original unfair labor practice charge. The

Board, in a 2-1 decision, found that the comments of the union president

suggested that it was ìpermissible, indeed laudable, for a union to

discriminate against nonmembers,î and thus undermined the settlement. It

found the situation analogous to cases where a respondent posts its own

disparaging notice alongside the Boardís version. Accordingly, the Board

found that the General Counsel acted within his discretion in setting aside

the original settlement and issuing a consolidated complaint alleging

violations both before and after the execution of the settlement. Id. at 1365.

In The Courier Journal, 342 NLRB No. 118 (2004), the Board

dismissed a complaint alleging that respondent had violated the Act by

failing to provide relevant information to the union because that information

was the subject of a prior settlement agreement that had been closed on

compliance. The Board majority found, contrary to the dissent, that the

information sought in the second complaint was not a new request for

information, but rather an attempt to revive the original dispute that had been

settled. According to the Board majority, the union alleged that the

information sought in the second complaint was information omitted from

the information provided pursuant to the settlement, but it failed to protest

the closure of the case on compliance. Thus, the Board declined to set aside

the settlement.
18

SECTION 9-850 (new section)óEFFECT OF PRIOR DECISION THAT

HAS BEEN VACATED BY VIRTUE OF SETTLEMENTóIn Caterpillar, Inc., 332 NLRB 1116 (2000), the Board held that an order vacating a prior

published decision pursuant to a settlement agreement vacates that decision

ìonly insofar as there is no longer a court-enforceable order in the case and

the decision has no preclusive effect on the parties.î The decision remains

published and ìmay be cited as controlling precedent with respect to the

legal analysis therein.î This is distinguishable from a vacatur on the merits, which does eliminate the prior decision for all purposes, including

precedential effect. See also SECTION 3-750, supra, and SECTION 11- 303 (new section), infra. SECTION 10-500óVIOLATION OF SEPARATION OF WITNESSES

ORDERóSEQUESTRATION RULE VIOLATIONóPREJUDICE

REQUIREDóIn AEi2, LLC, 343 NLRB No. 56 (2004), the Board

reaffirmed that a violation of a sequestration rule does not amount to

reversible error unless the complaining party establishes prejudice. The

Board affirmed the judgeís denial of respondentís motion to sequester

because it was untimely. But the Board also found that, even if the judgeís

ruling was erroneous, it would not have made any difference because

respondent failed to show that it was prejudiced by the judgeís ruling. The

non-excluded witness, Carter, was not present in the discussion that was the

critical event in the case, and thus did not testify about it. Moreover, as the

Board observed, Carter would have been designated as the Charging Partyís

designee to remain in the hearing room to assist counsel, had the motion to

sequester been granted. Since, as the Board also noted, at footnote 3, another witness would have been designated by the General Counsel as his

representative, the Board has in effect endorsed the notion that exceptions to

a sequestration rule permit the General Counsel and the Charging Party to

each designate a separate witness to remain in the hearing room to assist

them.

In North Hills Of ice Services, 342 NLRB No. 25 (2004), slip op. 1, fn. 2, the Board rejected respondentís contention that the attorney for

charging party testified in violation of the judgeís sequestration order

because he had been present throughout the trial. Noting that the judge had

warned the parties that ìthe credibility of witnesses who were present during

the testimony of other witnesses would be subject to attack,î the Board held

that ìthe judge fairly applied the sequestration order to all parties.î
19

SECTION 11-200óBANKRUPTCY, JURISDICTION OF THE

BOARDóThe Board retains jurisdiction over, and its orders may be

enforced against, bankrupt employers. In both Title 7 and Title 11

bankruptcies, Board orders, as ìgovernment unitís police or regulatory

power,î are exempt under subsections (b)(4) and (b)(5) from the automatic

stay provision in 11 U.S.C. Section 362(a) of the bankruptcy code. See

Bristol Nursing Home, 338 NLRB 737 at fn. 1 (2002). Collection of back

pay, however, requires a separate application to the bankruptcy court. NLRB

v. Continental Hagen Corp., 932 F.2d 828, 832-835 (9

th Cir. 1991); NLRB v. 15

th Avenue Iron Works, 964 F.2d 1336, 1337 (2d Cir. 1992). SECTION 11-301óJUDGES DECISIONS, WHEN NOT BINDING

PRECEDENTóJUDGEíS DECISION ADOPTED WITHOUT

EXCEPTIONS IS NOT BINDING PRECEDENTóIt is well settled that the

Boardís adoption of all, or even a portion, of a judgeís decision to which no

exceptions are filed does not serve as precedent for any other case. Whirlpool Corp., 337 NLRB 726, 727 at fn. 4 (2002), enfíd mem. 92 Fed. Appx. 224 (6

th Cir. 2004). See also Pathmark Stores, Inc., 342 NLRB No. 31 at fn. 1 (2004) and Stanford Hosp. and Clinics v. NLRB, 325 F.3d 334, 344 (D.C. Cir. 2003). SECTION 11-302óMOTIONS TO DISMISSóORALLY AT

HEARINGóBENCH DECISIONSóEVIDENCE IN SETTLED CASES

PROPERLY USED AS BACKGROUNDóIn St. Maryís Acquisition Co., supra, 342 NLRB No. 100 (2004), the Board reversed a judge who had

orally dismissed a complaint on respondentís motion, on the record, at the

conclusion of the General Counselís case, and it remanded the case to

another judge. In his initial decision, a ruling from the bench, the judge

granted the respondentís motion to dismiss, stating that the General Counsel

had failed to establish union animus in support of the complaint allegations. On an initial appeal, the Board remanded the matter and ordered the judge to

issue either a written decision or a bench decision, and the judge responded

by simply issuing a ìcertification of transcript.î The Board did not pass on

whether this complied with its initial remand order, but found that the

motion to dismiss was not properly granted. It found that the judge

erroneously rejected background evidence of animus proffered by the

General Counsel, because it was submitted in a settled case. The Board

found that this evidence should have been considered, citing Black
20

Entertainment Television, 324 NLRB 1161, 1163 (1997) and Overnite

Transportation Co., 335 NLRB 372, 376 fn. 18 (2001). As to the distinction between granting a motion to dismiss an entire

case and issuing a decision, see also Technology Service Solutions, 332

NLRB 1096 and fn. 3 (2000). In that case, the judge granted the

respondentís motion to dismiss after the conclusion of the General Counselís

case, but, unlike in St. Maryís, supra, gave the parties an opportunity to

submit briefs. The Board subsequently vacated the judgeís decision and

remanded the case for completion of the hearing and the issuance of a

supplemental decision. After issuance of the supplemental decision, the

Board ultimately affirmed the judge in part and reversed him in part, but it

nevertheless questioned the nomenclature used by the judge in defining his

actions. The judge had described his initial ruling as not being a decision

under Section 102.45(a) of the Boardís Rules, but rather a dismissal under

Section 102.35(a)(8). The Board disagreed, and found that it should have

been labeled a decision so that the appropriate procedures in appealing the

matter were those under Section 102.46 of the Boardís rules. See also, infra, SECTION 12-640 and SECTION 13-106. MOTIONS TO DISMISSóVIOLATION OF SKIP COUNSEL

RULEóIn Operating Engineers Local 17, 335 NLRB 578 (2001), the

Board denied respondentís motion to dismiss a complaint because one of its

agents was interviewed by General Counsel and gave a statement without

the respondentís counsel being present. According to respondent, this

conduct was improper and allegedly in violation of Section 10056.6 of the

Boardís Case Handling Manual. That section of the Manual, which is

known as the skip counsel rule, provides that normally when a respondentís

agent is interviewed by a Board agent the respondentís counsel should be

consulted and given an opportunity to be present. The Board, noting that the

Manual was not binding authority, nevertheless found that the General

Counselís conduct was not improper because the Board agent initiated

contact with the witness at a time when no notice of appearance had been

filed by respondentís counsel, and, when it was, the witness was notified but

agreed to continue the interview. In addition, the Board agent attempted to

notify counsel for respondent but the latter delayed in obtaining his

telephone messages until after the statement was secured. Significantly, the

witness was not called to testify in the hearing and his statement was not

used.
21

SECTION 11-303 (new section)óRELIANCE ON ALJ FINDINGS IN

PRIOR CASE PENDING REVIEW BEFORE THE BOARDóAlthough the

Board itself does not take judicial notice of an ALJ decision in a case that is

pending review before the Board because it is not binding authority (St. Vincent Medical Center, supra, 338 NLRB 888 (2003)), that does not mean

that a judge may not rely on factual findings or credibility determinations

made by a judge in a prior case. In such situations, the judge is not relying

on the prior decision as binding authority, but making a judgment that, for

reasons of judicial efficiency, he or she can justifiably rely on the prior

factual or credibility determinations rather than take the same evidence and

relitigate the same issues. The Board has approved this approach. See

Grand Rapids Press of Booth Newspapers, 327 NLRB 393, 394-395 (1998), enfíd mem. 215 F.3d. 1327 (6

th Cir. 2000), citing authorities (judgeís

findings in earlier case relied upon as showing evidence of animus in the

present case). Not only does this approach advance judicial efficiency, but it

also avoids a possible inconsistent result, where one judge makes certain

findings or credibility determinations and a second judge, hearing the same

evidence, makes contrary findings or credibility determinations. It also

avoids the delay attendant in awaiting the Boardís decision reviewing the

earlier judgeís findings. In giving effect to the earlier judgeís findings and

determinations, the second judge should understand that, if the Board (or a

court) reverses the earlier judgeís findings on review, his or her findings

may likewise be vulnerable. In this respect the second judgeís decision is

somewhat contingent on the Boardís ultimate disposition of the issue

litigated in the prior case. See Detroit Newspaper Agency d/b/a Detroit

Newspapers, 326 NLRB 782 fn. 3 (1998), enforcement denied 216 F.3d 109

(D.C. Cir. 2000) (judge properly relied on earlier decision of another judge

in a case pending before the Board for finding that a strike was an unfair

labor practice strike). The above authorities simply permit the judge to rely on the earlier

findings; the judge certainly has the discretion, in appropriate circumstances, not to rely on them. See Section 13-102, infra, and Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 972 (6

th Cir. 2003), discussed therein. In Fluor

Daniel, the Court found that a judge properly declined to rely on testimony

about a witnessís lack of credibility in an earlier proceeding because

consideration of that testimony would be ìconfusingî to the issues in the

second case. When presented with this issue, the judge should consider the
22

matter on a case by case basis and determine whether the circumstances

warrant reliance on the earlier findings. Compare with SECTION 3-750, supra, discussing Great Lakes

Chemical Corp., 300 NLRB 1024 (1990), where the Board itself has made

earlier findings involving the same respondent. In those circumstances, it is

appropriate to take official notice of the Boardís prior findings and

determinations. See also SECTION 9-850 (new section) and Caterpillar, Inc., 332 NLRB 1116, discussed therein. SECTION 11-350 (new section)óMOTIONS FOR SUMMARY AND

DEFAULT JUDGMENTóAn administrative law judge has authority to rule

on motions for summary judgment, default or otherwise, under Section

102.35(a)(8) of the Boardís Rules and Regulations. This authority, which, under Section 102.35(a), applies with respect to cases assigned to the judge

between the time the judge is designated and the time the case is transferred

to the Board, exists notwithstanding failure of the moving party to file such a

motion with the Board no later than 28 days prior to the scheduled hearing

under Section 102.24 of the Rules. Calyer Architectural Woodworking

Corp., 338 NLRB 315 (2002).

In January 2004, the Board revised its rules to provide specifically for

the granting of motions for default judgment where a respondent has failed

to file an answer. Such motions may be made either to the Board or, under

Section 102.35 of the Boardís Rules and Regulations, to the administrative

law judge. According to the explanatory material set forth in connection

with issuance of the final rule, motions for default judgment are not subject

to the requirements of Section 102.24(b) that motions for summary judgment

be filed no later than 28 days before the hearing. Such limitation is

unnecessary where the respondent has failed to file an answer. SECTION 11-400óCORRECTION OF TRANSCRIPTóIn Teamsters

Local 705 (Pennsylvania Truck Lines), 314 NLRB 95 fn. 2 (1994) the Board

rejected the General Counselís attempt through an exception to supply the

surname of a discriminate, identified in the transcript as ìRich [inaudible],î where no post-hearing motion or stipulation to correct the record had been

submitted. It stated that the burden was on the parties, not the court reporter, to make certain the transcript showed the correct name. During a trial, if a

witness does not speak distinctly, the judge should see that the reporter
23

checks the tapes to assure that all testimony is audible, particularly, in the

case of critical witnesses. SECTION 11-405óPORTIONS OF OTHER RECORDSóIn Beverly

Health & Rehabilitation Services, 335 NLRB 635, 639 fn. 26 (2001), enfíd

in part 317 F.3d 316 (D.C. Cir. 2003), the Board stated that it expects parties

to introduce all non-testimonial evidence on which they rely in the form of

individual exhibits. They cannot ìincorporate by referenceî portions of

other records, even those of Board cases involving the same parties. SECTION 11-602 (new section)óTESTIMONY OR DEPOSITIONS BY

VIDEOóVideo conferencing is widely used by lawyers, courts and

agencies for depositions. Perhaps, at least on a limited scale, they may be

used at trial. No Board case has directly addressed the issue, but testimony

by video may well ameliorate any problems the Board had with telephone

testimony in the Westside Painting case, discussed in Section 11-601 of the

bench book. In Palace Arena Football LLC, a/k/a Detroit Fury, Case 7-CA- 45132, the judge approved the taking of video testimony by the respondent

of a witness who would have had to travel a great distance at an

inconvenient time to appear at trial. The General Counsel objected to the

procedure and requested permission to take a special appeal. In an

unpublished order dated January 10, 2003, the Board denied the request, without prejudice to the right to raise the issue later on exceptions. Subsequently, the judge issued a decision dismissing the case and the

General Counsel did not file exceptions so the Board had no occasion to

address the issue. The Social Security Administration addressed the issue in

a final rule issued on December 11, 2003 (68 Fed Reg. 69003), which

permits hearings or parts of hearings (the testimony of individual witnesses)

before SSA administrative law judge by virtue of video conferencing. Under that rule, however, if a ìpartyî objects, SSA will reschedule the

matter for a regular hearing. Video conferencing equipment is available in

all regional offices and most large law firms. So long as counsel are given

the opportunity to be present, perhaps by a surrogate, at the location used by

the witness, and all other reasonable due process requirements are followed, there appears to be no significant reason why the procedure should not be

used, if circumstances warrant, in Board proceedings. Obviously, a reporter

must be present to transcribe the proceeding and care should be taken to

insure that the reporter is able to hear all the speakers wherever they are

located. To the extent that video conferencing may be thought to be an

improvement over the present wide-spread use of telephone conference call
24

settlement sessions, it seems to be even less objectionable, although

probably more costly, than telephone settlement conferences. A cautionary

note however: The process of videoconferencing may present technical or

logistical problems that may outweigh the advantages of its use. SECTION 11-800óSTIPULATIONS, USE OFóSTIPULATED

RECORDSóSection 102.35(a)(9) of the Boardís Rules and Regulations

was amended in 2002 to delete a former provision that authorized a longtime unused kind of stipulation and to substitute a new one authorizing more

generally stipulations of fact that ìwaive a hearing and provide for a

decision by the administrative law judge.î Alternatively, the parties may

agree to stipulate the matter to the Board, a procedure previously utilized, but never before formally embodied in the Boardís Rules. Before accepting

a stipulated record for decision, the judge should make sure that the

stipulation covers all evidence needed to render an effective decision. SECTION 12-401(new section)óUSE OF BRIEFS IN DECISIONSó

Judges should not use excerpts from the briefs of the parties as a substitute

for their findings and legal analysis in the written decision. Extensive and

verbatim copying from the brief of the winning party in the judgeís decision

not only creates the appearance of partiality, but also gives the impression

that the judge failed to conduct ìan independent analysis of the caseís

underlying facts and legal issues.î Dish Network Service Corp., 345 NLRB

No. 83 (2005). In that case, the Board set aside the judgeís decision because

he had copied so extensively from the briefs of the General Counsel and the

Charging Party. To dispel any impression of partiality, the Board remanded

the case for a different judge to independently review the record and prepare

a new decision. See also SECTION 2-510, supra. SECTION 12-500óEXPEDITED DECISION WITHOUT BRIEFSóIn

K.O. Steel Foundry & Machine, 340 NLRB No. 153 (2003), slip op. 1, the

Board rejected a claim that the judge had erred in refusing to allow the

respondent to file a post-hearing brief. Noting that the judge had precluded

all parties from filing briefs, the Board held that ì[w]hether to permit the

parties to file post-hearing briefs is a matter committed to the sound

discretion of the administrative law judge.î SECTION 12-620óDECIDING TO ISSUE BENCH DECISIONóNOT

IN COMPLEX CASESóIn Des Moines Register and Tribune Co., 339

NLRB 1035 fn. 1 (2003), petition for review den., 381 F.3d 767 (8

th Cir.
25

2004), the Board cautioned that judges should not issue bench decisions in

complex cases, but should invite briefs and conduct a more thorough

analysis of the matter in a written decision. SECTION 12-640óBENCH DECISIONSóCONTENTS OF BENCH

DECISIONóSee SECTION 11-302, supra, and St. Maryís Acquisition, 342

NLRB No. 100 (2004) discussed therein. SECTION 13-102óEVIDENCEóTAUT RECORDóRULE 403 FREóIn

Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 972 (6

th Cir. 2003), the Court

stated that the administrative law judge was ìunder no obligation to consider

determinations made by another ALJ in a wholly different case regarding the

credibility of a particular witness.î The witness was found to have filed

frivolous charges, falsified evidence and committed perjury in an earlier

case, but the Board had reversed those findings. According to the Court, the

judge properly ruled that any testimony regarding involvement of the

witness in the earlier case would ìadd confusion to the current case.î Thus, the Court refused to disturb the judgeís credibility determination in the case

before it. SECTION 13-102(a) (new section)óEVIDENCEóTAUT RECORDó

RULE 403 FREóCREDIBILITYóIn J.S. Troup Electric, Inc., 344 NLRB

No. 125 (2005), the Board upheld a judgeís exclusion of evidence

purportedly showing that a witness, otherwise broadly credited, was working

while receiving unemployment or workerís compensation benefits, allegedly

in violation of State law and that he was untruthful with State agencies on

those matters. Citing FRE 608(b) and relevant case authority, the Board

observed that extrinsic evidence bearing on a witnessís credibility is

inadmissible unless it pertains to a criminal conviction, and, although a

judge may, in his or her discretion, permit some cross-examination on a

witnessís character for truthfulness, the judge may exclude such evidence if

its probative value is outweighed by considerations of undue delay or waste

of time. Thus, FRE 608(b) is subject to FRE Rule 403. Moreover, even if

such cross-examination is permitted, the cross-examiner may not attempt to

disprove the witnessís answers by extrinsic evidence because this would risk

a mini-trial on peripheral matters. The Board also noted that the judge did

not act summarily, but deferred ruling on the proffered evidence until he had

heard all of the evidence bearing on the witnessís credibility. See also

Boardwalk Regency Corp., 344 NLRB No. 122 fn. 1 (2005), where the

Board clarified its earlier decision in Double D Construction Group, 339
26

NLRB 303, 306 (2003), in which the Board criticized a judge for generally

discrediting a witness for lying about his social security number. In

Boardwalk Regency, the Board stated that Double D Construction stands for

the proposition that ìa judge should not rely solely on a single prior act of

falsification;î but if there are other factors supporting the witnessís

credibility, ìthey too must be considered.î See also SECTION 13-703ó

IMPEACHMENTóCREDIBILITY. SECTION 13-106óPRESETTLEMENT CONDUCTóEVIDENCE IN

SETTLED CASES PROPERLY USED AS BACKGROUNDóSee also

SECTION 11-302, supra, and St. Maryís Acquisition, 342 NLRB No. 100

(2004) discussed therein. SECTION 13-203óHEARSAYóADMISSIBLE IF

CORROBORATEDóIn RC Aluminum Industries, Inc., 343 NLRB No. 103

(2004), slip op. 2-3, respondent challenged a judgeís decision to admit into

evidence a notation from a personnel file indicating that the alleged

discriminatee had been terminated. While agreeing that the notation was

hearsay, the Board affirmed the decision to admit it since it had been

corroborated by the credible testimony of the alleged discriminatee. SECTION 13-215óPOSITION STATEMENTSóADMISSIBILITYóIn

United Scrap Metal, Inc., 344 NLRB No. 55 (2005), the Board held that a

respondentís position statement is admissible in evidence as an admission

against interest, even though submitted by the respondentís former counsel. The Board noted that the attorney who voluntarily provided the position

statement to the General Counsel never withdrew as respondentís counsel. Id. at fn. 5. See also, infra, SECTION 13-243. Compare SECTION 8-450 (new section), supra, and Kaiser

Aluminum, 339 NLRB 829 (2003), discussed therein. In Kaiser Aluminum, the Board found that the statement of a charging partyís attorney was

protected by the work product privilege. SECTION 13-217óTAPE RECORDING (AUDIO/VIDEO) MADE

SECRETLY ñ In Times Herald Record, 334 NLRB 350, 354 (2001), enfíd

mem. 27 Fed. Appx. 64 (2

nd Cir. 2001), the Board reaffirmed that a

surreptitious tape recording is admissible even when the recording violates

state law. And in Fleming Companies, 336 NLRB 192 at fn.2 (2001), enfíd

in part 349 F.3d 968 (7

th Cir. 2000), the Board stated that it did not consider
27

a witnessís surreptitious taping of a conversation with management

representatives to be a basis for discrediting the witnessís testimony. SECTION 13-235óADVERSE INFERENCESóBANNON MILLS

SANCTIONSóSee SECTION 8-620, supra, and McAllister Towing, 341

NLRB No. 48 (2004) discussed therein. See also SECTION 8-500 and

National Specialties Installations, 344 NLRB No. 2 (2005) discussed therein

(Adverse inference rule is not mandatory). SECTION 13-236 (new section)óPRESUMPTION AS TO SERVICE OF

DOCUMENTS BY FAX BY VIRTUE OF SENDERíS FAX

CONFIRMATION REPORTóSee SECTION 4-500, supra, and Hardesty

Company, 336 NLRB 258, 259 (2001) discussed therein. SECTION 13-237 (new section)óPROTECTIVE ORDERSóWhere

appropriate, documents may be admitted in evidence, subject to protective

orders limiting the use of the documents or requiring that they be placed

under seal. See SECTION 8-330, supra, particularly Rule 26 of the Federal

Rules of Civil Procedure and United Parcel Service, 304 NLRB 693, 694

(1991), discussed therein. SECTION 13-243óADMISSIONS BY ATTORNEYóSee SECTION 13- 215, supra, and United Scrap Metal, 344 NLRB No. 55 (2005) discussed

therein. SECTION 13-270óPRIVILEGESóATTORNEY CLIENTóCRIME- FRAUD EXCEPTIONóSee Smithfield Packing Co., 344 NLRB No. 1

(2004), discussed above, in SECTION 8-410, supra; and SECTION 8-450

(new section), supra, and Kaiser Aluminum, 339 NLRB 829 (2003), discussed therein. SECTION 13-275óWORK PRODUCT PRIVILEGEóIn Sprint

Communications d/b/a Central Telephone Co., 343 NLRB No. 99 (2004), the Board sets forth a thorough discussion of the work product privilege as it

applies to Board proceedings. In that case, the Board affirmed a judgeís

dismissal of a Section 8(a)(5) allegation that the respondent failed to provide

relevant information to a union in support of a grievance. The union had

requested a copy of notes taken by respondentís human resources specialist

with respect to an investigation into alleged misconduct by employees

represented by it. The Board, in a 2-1 decision, found that the notes were
28

prepared in anticipation of litigation, because even though no litigation had

been initiated and indeed the employees had not yet been disciplined when

the notes were prepared, respondentís fear of litigation was ìobjectively

reasonable.î According to the Board majority, the particular investigation

was not a routine one done in the ordinary course of business, but rather in

anticipation of litigation. Slip op. 3. Thus, the Board majority held that the

notes fell within the ambit of the work product privilege and the union had

not met its burden of showing a ìsubstantial needî to overcome the

privilege. See also fn. 6 in the dissent for the differences between the work

product privilege and the attorney-client privilege. See also SECTION 8- 450 (new section), supra, and Kaiser Aluminum, 339 NLRB 829 (2003)

discussed therein. Compare Borgess Medical Center, 342 NLRB No. 109 at fn. 5, in

which the Board upheld a Section 8(a)(5) and (1) violation for the failure to

provide information, rejecting a claim that the information was subject to the

attorney-client and work product privileges. The incident reports that were

the subject of the information request were prepared by employees, sent to

the department director for review, then forwarded to the risk management

staff, most of whom are not attorneys, for entry into the employerís data

base. Only incident reports that concern serious occurrences are forwarded

to individual attorneys. See also SECTION 13-270 and SECTION 8-410

and SECTION 8-450 (new section), supra. SECTION 13-406óBACKPAY AND REINSTATEMENT OF ILLEGAL

ALIENSóIn Hof man Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 140

(2002) the Supreme Court ruled that federal immigration policy, as

expressed in the Immigration Reform and Control Act of 1986 (IRCA)

prevented the Board from awarding back pay ìto an undocumented alien

who has never been legally authorized to work in the United States.î SECTION 13-606óINTERPRETERSóRule 604 of the Federal Rules of

Evidence provides as follows: ìAn interpreter is subject to the provisions of

these rules relating to qualification as an expert and the administration of an

oath or affirmation to make a true translation.î An Authorsí comment to the

rule states that interpreters should strive to translate exactly what was said, without comment on the testimony or embellishment, citing cases. SECTION 13-608 (new section)óPROVIDING INTERPRETERS FOR

JENCKS STATEMENTS USED IN CROSS-EXAMINATIONóSee
29

SECTION 8-500, supra, and the discussion therein of NLRB v. Doral

Building Services, 666 F.2d 432, 435 (9

th Cir. 1982), where the court

required that the General Counsel provide an official English translation of

non-English affidavits turned over to respondent for cross-examination of

General Counselís witnesses. SECTION 13-703óIMPEACHMENTóCREDIBILITYóSee SECTION

13-102(a) (new section), supra, and discussion therein of J.S. Troup Electric, 344 NLRB No. 125 (2005) and Boardwalk Regency, 344 NLRB No. 122

(2005). See also SECTION 13-217, supra, and Fleming Companies, 336

NLRB 192 fn. 2 (2001), discussed therein. SECTION 13-801óJENCKS STATEMENTSóJUDGE MUST MAKE IN

CAMERA INSPECTION TO DETERMINE RELEVANCEóIn Tejas

Electrical Services, Inc., 338 NLRB 416 at fn. 2 (2002), the Board, citing

Caterpillar, Inc., 313 NLRB 626 (1994), found that the judge erred by

summarily denying respondentís request for the production of affidavits

given by witnesses in cases other than the instant one, without making a

determination through an in-camera inspection that the affidavits were not

relevant to the issues in the case before him. The Board found, however, that the error was not prejudicial in this particular case because the

complaint was dismissed. SECTIONS 13-803 and 804 (clarification)óEVIDENCEóWITNESS

STATEMENTS (JENCKS RULE)óOF PERSONS NOT GOVERNMENT

WITNESSESóSECTION 611(c) WITNESSESóThe Charging Party is

entitled, on request and for the purpose of cross-examination, to the

statement, in the possession of the General Counsel, of an agent who

testifies on behalf of a respondent. Section 10394.7 of the Boardís Case

Handling Manual (Part One). This codification of the ruling in Seftner

Volkswagen Corp., 257 NLRB 178 fn. 1, 186-187 (1989) also apparently

applies when a charging party calls an adverse witness under FRE Section

611(c). See Louisiana Dock Co., 293 NLRB 233, 250-251 (1989), enforcement denied 909 F.2d 281 (7

th Cir. 1990). SECTION 13-815óJENCKS STATEMENTSóRIGHT TO COPY OR

KEEPóIn Wal Mart Stores, Inc., 339 NLRB 64 (2003), the Board

emphasized the narrow scope of the limited exception in Section

102.118(b)(1) of the Boardís Rules and Regulation to the general prohibition

in Section 102.118 against release of Board files, including witness
30

affidavits, without permission. The specific exception provides for the

release of a witness statement, after that witness has testified, for use in

cross-examination of that witness. But, as the Board stated, ì[a]fter that

limited purpose is served, the exception no longer applies and the

prohibition of the Rule is restored.î Although, in Wal-Mart, the Board

clearly held that the judge erred in permitting the respondent to retain

witness statements after the close of the hearing, in dictum, the Board

seemed also to question whether retention of the statements beyond the

purpose stated in the rule was required. Nevertheless, it appears that a judge

may, in his or her discretion, appropriately permit counsel to copy the

statement and to retain it throughout the hearing ìfor any legitimate trial

purpose.î Ibid at fn. 3.

In Pacific Bell Telephone Co. d/b/a SBC California, 344 NLRB No. 11 fn. 3 (2005), the Board affirmed the judgeís ruling that the respondent

was not entitled to a witnessís affidavit when the request was made

untimely, namely, after the close of respondentís case. The Board cited

other cases in which the request was deemed untimely, for example, when

the request was not made until after cross-examination was completed and

the witness excused.